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2016 DIGILAW 716 (RAJ)

New India Assurance Co. Ltd. v. Kailash Chandra

2016-05-19

GOVERDHAN BARDHAR

body2016
JUDGMENT : Goverdhan Bardhar, J. Instant appeal has been filed by the appellant insurer against the award dated 25.5.2000 passed by the Motor Accident Claims Tribunal, Udaipur in Claim Case No. 214/1995 awarding compensation in the sum of Rs. 1,74,000/- to the claimant for the injuries sustained in the accident. 2. Succinctly stated facts of the case are that the claimants filed a claim petition to the effect that respondent No. 2 Kup Singh negligently and carelessly had driven vehicle No. RJ-27 G-0147, as a result of which claimant-respondent No. 1 Kailash Chandra sustained simple as well as grievous injuries. The said vehicle was insured with the appellant company and the vehicle is owned by Anoop Kumar, respondent No. 3. 3. The learned Tribunal while deciding the Issue No. 1 in favour of the claimant held that the driver Kup Singh was rash and negligent in driving which caused the accident resulting in simple and grievous injuries to the claimant. Accordingly, the learned Tribunal awarded a compensation in the sum of Rs. 1,74,000/- in favour of the claimant. 4. Learned counsel for the appellant Insurance Company contends that as per terms of the policy, the driver must hold valid licence at the time of accident to drive the vehicle but the driver respondent No. 2 was not having valid driving licence and the licence which was produced by the owner respondent No. 3 of the driver was forged and since the driving licence was forged/fake, therefore, the appellant Insurance Company is not liable to pay compensation and it has to be borne by the respondent No. 2 & 3. Learned counsel for the appellant further argued that the appellant Insurance Company wanted to adduce evidence in this respect but the learned Tribunal did not grant full and proper opportunity to the appellant to produce the witnesses in this connection. It is further argued that if the finding on issue No. 1 regarding validity of the driving licence is decided in favour of the appellant, the liability to pay compensation will not come on the shoulders of the appellant company but it will have to be borne by the non-applicants i.e. driver and owner of the vehicle. 5. It is further argued that if the finding on issue No. 1 regarding validity of the driving licence is decided in favour of the appellant, the liability to pay compensation will not come on the shoulders of the appellant company but it will have to be borne by the non-applicants i.e. driver and owner of the vehicle. 5. Per contra, learned counsel for the respondent argued that the vehicle was insured with the appellant Insurance Company and at the time of hiring the driver, the owner is not expected to find out whether the licence is genuine or not. Thus, when the appellant insurance company has insured the vehicle, it cannot seek absolvance of liability if ultimately the licence turns out to be fake. Learned counsel for the respondent relied on a decision of the Hon'ble Apex Court in the case of 'United India Insurance Co. Ltd. v. Lehru and Ors. reported in (2003) 3 SCC 338 : RLW 2003 (2) SC 326. 6. Heard learned counsel for the parties and perused the record. 7. It is an admitted fact that the vehicle in question was insured with the appellant Insurance Company. The contention of the appellant Insurance Company is that since the driver of the vehicle was having a forged/fake licence, therefore, the appellant company is not liable to make compensation. It is pertinent to note that in the reply to the claim petition filed by the Insurance Company, it was pleaded that non-applicant No. 3 owner Anoop Kumar had produced the driving licence of Kup Singh, driver which was forged and this position was disclosed from the report of Surveyor to whom the driving authority, Dehradoon had disclosed that driving licence No. 64719/90 had never been issued in the name of Kup Singh. Thus, according to the appellant company, the licence in the name of Kup Singh was forged one. 8. AW/1 Kailash Chandra who was the khalasi of the vehicle in question, in his cross-examination has categorically stated that the driver of the vehicle was Kup Singh and it is wrong to say that the licence possessed by Kup Singh and it is wrong to say that the licence possessed by Kup Singh was fake one. Thus, it shows that the owner was satisfied and found that the driver was competent to drive the vehicle and therefore, he hired the driver to drive the vehicle in question. Thus, it shows that the owner was satisfied and found that the driver was competent to drive the vehicle and therefore, he hired the driver to drive the vehicle in question. 9. Learned Tribunal while deciding Issue No. 3 has categorically observed that the driving licence of the driver has been produced on record and the licence of the driver, if it is allegedly fake or forged, then it was the duty of the Insurance Company to prove the same but the appellant Insurance Company has failed to prove that the licence of the driver was forged. It is admitted case of the Insurance Company that the owner himself produced the driving licence of driver Kup Singh in evidence but merely from the report of Surveyor of the Insurance Company, it cannot be said that the driver was having a forged/fake driving licence. The aim and purpose of the provision for compulsory third party risk is that an Insurance Company would be available to pay the compensation and in order to avoid liability, it is not sufficient to show that the person driving at the time of accident was not duly licensed but the Insurance Company must establish that the breach was on the part of the insured. As far as the licence of driver being forged is concerned, in the first instance, the appellant Insurance Company has failed to prove that the licence of the driver was fake or forged and secondly, even if ultimately the licence turns out to be fake then also the insurance company would continue to remain liable unless it is proved that the owner/insured was aware or had noticed that the licence was fake and still permitted and hired that person to drive the vehicle, which is not the case in this appeal. 10. Hon'ble Supreme Court in the case of Lehru (Supra) has held that the owner is not expected to fine out whether the licence has in fact been issued by the competent authority or not and the Insurance Company cannot expect owners to make enquiries with RTOs which are spread all over the country whether the driving licence shown to them is valid or not. Thus, where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). Thus, where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). Thus, the Insurance cannot be absolved of the liability on the pretext that the licence is found to be fake or forged as per report of the Surveyor of the Insurance Co. 11. In view of above, I find no error in the impugned order dated 25.5.2000 passed by the learned Motor Accident Claims Tribunal, Udaipur. Hence, this appeal is hereby dismissed.